BWWB Vice Chair: Some board members ‘do not necessarily care about doing what is in the best interest of the BWWB’

BIRMINGHAM, Ala. (WBRC) - UPDATE: The Board voted to end its agreement with Environmental Litigation Group and make efforts to dismiss a federal lawsuit ELG filed on BWWB’s behalf related to PFAS chemicals.

The Vice Chairman of the Birmingham Water Works Board (BWWB) warned Tuesday, “We currently have several board members that do not necessarily care about doing what is in the best interest of the BWWB, but how they can use the BWWB operations to further their own agenda.” William “Butch” Burbage was responding to WBRC reporting that a Birmingham environmental law firm is suing more than a dozen chemical manufacturers on behalf of the Birmingham Water Works Board, thanks to a change in the language of the contract with the utility that appears not to have been directly approved by the full board of directors.

At issue is the lawsuit filed by Environmental Litigation Group (ELG) in November 2022 that alleges multiple chemical companies are liable for producing PFAS, or so-called “forever chemicals.” The chemicals are found in firefighting foam that the lawsuit claims have contaminated BWWB water sources, though the utility issued a statement last week assuring customers your drinking water “is safe and not contaminated.”

ELG filed the suit under the terms of a scope of services agreement with the BWWB that says “Subject to a favorable results of our investigation into your potential claims, we will file and prosecute a lawsuit on your behalf against responsible parties that we deem necessary.” That’s the wording in the agreement signed by BWWB General Manager Michael Johnson on Feb. 3, 2021. But in the agreement actually approved by a 5-2 vote on August 12, 2020, that clause of the ELG contract says “Subject to a favorable results of our investigation into your potential claims, we will file and prosecute a lawsuit on your behalf against responsible parties that we, after consultation with and approval by you, deem necessary.”

The Water Works Board had an item on their last meeting agenda Feb. 22 to dismiss the ELG lawsuit it’s filed without prejudice, but that item was pulled from the agenda minutes before the meeting began. It has since been added to the agenda for a meeting on Wednesday, March 8.

When WBRC asked the Birmingham Water Works spokesman for clarification on who removed or changed the language in that ELG contract, spokesperson Rick Jackson said, “Other than the information we have already provided to you, we cannot provide you with any further clarification.”

There is another notable change in the language of the contract actually voted on by the board and the one signed by General Manager Johnson and the ELG firm - the board-approved contract gives the law firm permission to “conduct testing of the water sources of Birmingham Water Works,” while the signed-contract uses the phrase “conduct testing of the water and/or property of the Birmingham Water Works.”

WBRC reached Birmingham Water Works Board Vice Chair William “Butch” Burbage for comment and he said: “First and foremost, I was never in favor of engaging this group to handle any litigation on behalf of the BWWB. I am on the record as voting no on any and all resolutions engaging this group and this legal action. I have only recently been made aware of the change in the language between the two agreements you noted. If I’m not mistaken, this agreement was completed when there had been a change in the Legal Counsel representation for the BWWB. A panel of attorneys had been established with Mr. Emory Anthony designated as the Lead Counsel and, I believe, he was the one that handled this agreement. While Mr. Anthony is an excellent attorney, I believe his expertise is primarily as a defense attorney, not as a Corporate attorney. Once again, I was not in favor of establishing this legal panel concept. I have no idea why any changes were made between the original agreement and the one that was finalized and signed. I believe Director Mims was the Chairman during this time with the support of the appointees from the Mayor and the City Council of Birmingham, so he may be the one that needs to be contacted for any comments during this time.”

When asked if it is common to have that language in a contract, Vice Chair Burbage said: “…no it’s not acceptable in my opinion. I would also note that we currently have several board members that do not necessarily care about doing what is in the best interest of the BWWB, but how they can use the BWWB operations to further their own agenda. The BWWB is a corporate entity that has the sole purpose to provide the best water possible at the lowest possible cost to their customers. That means something different to some current directors.”

In the lawsuit filed by the BWWB, it says testing performed on tap water in 2019 “revealed a combined PFOA and PFOS level of as high as 5.3 ppt, exceeding the current EPA health advisory.” The suit goes on to say testing at the Shades Mountain treatment plant and Cahaba Pump Station in 2020 found chemical levels “exceeding the current EPA health advisory.”

But in the minutes from the BWWB board meeting on March 11, 2020, when the possibility of this lawsuit was discussed, Assistant General Manager Jeff Thompson told the board “the last time BWWB tested for PFOS the results were BWWB’s water was 28 times below the standard set by the Environmental Protection Agency (EPA). He indicated BWWB has one of the state-of-the-art laboratories in the country. He indicated with this particular test, BWWB does not have the capability to go down to 1 part per million; however, BWWB is well, well, well below the level that is currently being discussed by the EPA.”

In a statement to WBRC, the Birmingham Water Works says “Our water quality is safe and is not contaminated and our customers should not be concerned.”

The utility goes on to say “As part of our extensive testing regime, we test for a variety of unregulated chemicals and compounds including PFOS and PFOA. The chemicals generally referred to PFAS are found everywhere in our everyday environment. The testing that we have performed on these chemicals have detected no PFAS chemicals in any of our various sources of water supply or our four water treatment plants’ finished water above any EPA or ADEM regulatory limit.”

At least one Birmingham Water Works Board member wants to see the utility continue pursuing this lawsuit: Dr. George Munchus sent an email to all Birmingham City Council members since the last board meeting saying, in part, “We need to stay in this federal lawsuit for obvious reasons. The settlement will allow among other important infrastructure needs the BWW to secure much needed cash dollars to help your low and fixed income water and sewer customers needing plumbing repairs any payment help by establishing a much needed customer assistance fund! Those board members who do not live in the city are wrongly pushing for a vote.”

Asked about the change in language in the contract with ELG, Munchus said, “This board of Directors has a very broad and deep fiduciary responsibility to the ratepayers and citizens to use these resources wisely. That includes approving any and all changes in the contract languages associated with this very important public interest water litigation.”

The city of Birmingham filed a similar PFAS-related suit against a similar list of companies in the same South Carolina federal court, and is using ELG as their outside counsel.

WBRC has reached out to Environmental Litigation Group for a comment, but hasn’t heard back.

We also reached out to former Board Chair and current Board member Ronald Mims and are awaiting a response.

Get news alerts in the Apple App Store and Google Play Store or subscribe to our email newsletter here.

Copyright 2023 WBRC. All rights reserved.